Tuesday, February 15, 2011

Tariq al-Bishri and Constitutional Revision

News that the Supreme Comittee of the Armed Forces has appointed the former judge of the State Council, Tariq al-Bishri, as chair of a committee to re-write or revise the Egyptian constitution is remarkably important. It may also provide some insight into what the military is thinking and what possibilities they are willing to consider. For a process that we are only a couple of days into, this announcement itself is laden with historical meaning (and irony) as well as possible ambiguity.

Given that the ongoing labor conflict and the army’s advice that it end quickly is capturing most of the commentary, I want to write about Al-Bishri himself. Even as I write state television is providing its own account of what his appointment might mean.

The deepest irony which cannot be lost on anyone who has been following events and most of the Western accounts of them is that the armed forces have turned to an 80-year old public intellectual and judge to guide the task of re-writing the constitution for the 21st century in the wake of a revolution made by three generations removed from him. What few accounts in English I have seen so far refer to him as a moderate Islamist, an honest figure, and a former secular leftist who is a “bridge” between secular political figures and the Muslim Brothers.

Bishri himself is a more complex figure whose familial and personal history are revelatory of changes in Egyptian society over the last century. His grandfather served in the position of Shaykh al-Azhar, the most important religious position in the Egypt, at the beginning of the 20th century. His father was on the Court of Cassation, the highest state appellate court in the 1930s. He himself spent his entire working career in the State Council which is the highest administrative court in Egypt and is modeled on the French Conseil d’Etat. There is, insofar as I know, no equivalent in the American legal system. The job of the State Council is to ensure that the state follows its own rules. It is not, at any rate not directly, supposed to rule on the constitutionality of laws in the way the US Supreme Court does. It is supposed to make sure that the administrative actions of the state conform to the rules it has already set in place. Although this is a somewhat different way of looking at the rule of law than the Anglo-American one we are used to, it can be a powerful tool for disciplining the executive power but only if there is indeed an independent judiciary. Egypt, of course, also has a Supreme Constitutional Court and it appears that at least a couple of members of that body also sit on this committee.

Although Al-Bishri entered his career in the 1950s after graduating from law school he is old enough to have memories of what my old professor Afaf Marsot called Egypt’s liberal experiment. Thus one of the ironies of appointing an 80 year old to chair the reform committee is that no one much younger has any memory or experience with an Egypt that had a functioning parliament or a commitment, however limited, to liberal institutions. Younger people do, of course, have experiences with such systems but not in Egypt; to the extent that they have experienced liberal democracy it has been outside the country whether in the US or Europe.

Bishri has been an acerbic critic of Husni Mubarak and his government. In his presciently titled booklet, Egypt Between Disobedience and Decay, Bishri outlined how the creation of an authoritarian state rooted in Mubarak’s person had worsened the dictatorial tendencies that had been present since 1952 but had added the burden of decreased competence as the regime sought compliance rather than capability from its agents. He also pointed out the extremely unequal income distribution that became increasingly prevalent in the society during Mubarak’s 30 years in power.

Bishri is widely considered a leading (if not the leading) public intellectual in Egypt today. This is not to say everyone agrees with him and in recent years he has evoked some significant criticism for his involvement in some very public controversies about the role of Copts and especially the Church in Egyptian society.

Bishri has served as an adviser to several groups of younger activists (and these days almost all activists are younger than he is) including Kifayah (Enough) which can be considered the point of departure of the groups that initiated and led the recent mass protests. Although he is personally close to members of the Muslim Brothers (including the noted attorney Salim Al-Awa) and has a high opinion of their importance in Egyptian political history, he has (to my knowledge) never been a member. He is often bracketed in Western accounts with others who are considered Islamic liberals such as Awa or the constitutional law professor Kamal Abu al-Magd who Mubarak, in the waning hours of his government, appointed to his own committee to oversee constitutional reform. That committee now appears to be disbanded.

In his younger days, Bishri was closely associated with the left although he was influenced at least as much by the writings of Max Weber and lawyers associated with the British Labor party as by Karl Marx. One of Bishri’s earliest interventions on the organization of the Egyptian state was a short book published by the Communist publisher, New Culture, in the 1970s on democracy and Nasserism. This may be why he is often viewed as a lapsed leftist, although his analysis of the Nasserist state set out the themes which have dominated much of his political criticism in the intervening years: the dangers of a state without an independent judiciary and an overly power executive. One point Bishri made then and has made in different ways since is that to the degree the legislative and executive branches are unified as has occurred in Egypt over the past 60 years the independence of the judiciary is also compromised. In other words, without a separation of the powers of legislation and execution there can be no real power of adjudication except perhaps at the most elementary level of arbitrating private disputes.

Without knowing exactly what mandate the committee he chairs was given by the military, it is hard to be very specific. Even television comment here today points out that al-Bishri has long been a champion of judicial independence. It would be difficult for Bishri to refuse service on such a committee at such a moment but it is also difficult to imagine he would have accepted to serve merely as a figurehead.

One plausible guess therefore is that the committee will at least pose the possibility of a much stronger parliament as a counterweight (rather than an alternative) to a powerful presidency. Bishri may be one of the few legal scholars who would favor a working separation of powers rather than lodging authority either in the presidency or the parliament. Such a separation would, at least in what he has written across the years, be the prelude to an equally powerful but independent judiciary whose role would then be, as in the US, to balance these two contenders.

Although al-Bishri may have ideas about the organization of the institutions of the state that bear similarities to the US he is a strong nationalist and by no means particularly enamored of American policies. He has very strong sentiments about the strategic dangers that he sees Israel posing to Egypt. That said, Bishri himself is tasked with how the institutions of the state should be constituted not with the day to day policies they should follow. Along with a profound concern with judicial independence he may also have two other goals. One, which will command little direct objection in today’s Egypt, is to continue the policies of the provision of social welfare in ways that mirror concerns of a generation of European Social Democrats and Egyptian nationalists when he was a young man. Bishri will probably push for a strongly independent judiciary in ways that both Antonin Scalia and Ruth Bader Ginsburg can agree with. He is not likely to want the Egyptian state to adopt the vision of the economy that John Roberts, Samuel Alito or Clarence Thomas would find compelling. On the question of Islam he is extremely unlikely to push for excluding the revised Article 2 that shariah is the source of Egyptian law. For better or worse he believes that most Egyptian law is already compliant with shariah and he generally argues that the role of shariah in Egyptian law is similar to that of natural law in European legal systems: it provides judges (not so much legislators) with cues about what to do when the legislature has been silent or incoherent. He does not seem inclined to allow the ulama (Islamic legal scholars) to interpret law for the regular judiciary except (and this is an important exception) in cases in which legislation has given them that authority.

Bishri is profoundly antagonistic to the military tribunals and special courts as well as the state of emergency that the government has employed over the past decade. Far more important for Egypt’s future, however, is his occasional suggestion (at least when he was much younger) of a very different vision of the Egyptian state: one in which the high degree of centralization and hierarchy that currently characterizes it was sharply reduced. What, in other words, if (without dismantling the current state which shares much in common with the various governments that issued from the French revolution) Egyptians were to gain much more authority to make decisions over their own lives? Bishri will not (and I think very few Egyptians would) propose transforming Egypt into a federal system whether on the American, German or Brazilian models. But he might be interested in transferring power away from a hierarchical system centered in Cairo to one in which Egyptians gained more control over the institutions that affect their lives locally. In some ways the past three weeks have confirmed some of Bishri’s earlier ideas that Egyptians could govern themselves if given the chance. He now may be in a position to push that idea a little further forward. y